Post on 06-Jul-2018




0 download

Embed Size (px)


<ul><li><p>1 </p><p>REPUBLIC OF SOUTH AFRICA </p><p>THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG </p><p>JUDGMENT </p><p> Not Reportable </p><p> CASE NO: JS 1135/12 </p><p>In the matter between: </p><p>DENNIS PEARSON AND 14 OTHERS Applicant </p><p>and </p><p>TS AFRIKA CATERING SOLUTIONS First Respondent SODEXO SOUTHERN AFRICA (PTY) LTD Second Respondent Heard: 28 February 2014 </p><p>Judgment: 28 February 2014 </p><p>Edited: 28 March 2014 </p><p> ___________________________________________________________________ </p><p>EX TEMPORE JUDGMENT </p><p>___________________________________________________________________ </p><p>VAN NIEKERK J </p><p>[1] The applicants have filed a statement of claim in terms of Rule 6, in </p><p>which they seek a declaratory order to the effect that the cancellation of </p><p>the outsourcing contract between the first respondent and Media 24, and </p></li><li><p>2 </p><p>the subsequent awarding of the same contract by Media 24 to the </p><p>second respondent, constitutes the transfer that business as a going </p><p>concern for the purposes of section 197 of the Labour Relations Act. </p><p>[2] The applicants also seek a declaratory order to the effect that their </p><p>contracts of employment transferred to the second respondent with no </p><p>loss of benefit, and that this order operates retrospectively from 1 May </p><p>2012. The statement of claim was drafted and the referral to this Court </p><p>made by the applicants erstwhile attorney of record. He withdrew a week </p><p>ago. </p><p>[3] In response to the statement of claim, the second respondent submits </p><p>that the declaratory relief sought by the applicant is not competent and </p><p>that regardless of the merits of the claim, the referral should be </p><p>dismissed for that reason. In essence, as I understood the argument, </p><p>the second respondent contends that the failure by the applicants to refer </p><p>an unfair dismissal dispute to this Court renders the relief they seek, i.e. </p><p>a declaratory order as to whether section 197 applies, to be of no </p><p>consequence. At the outset of the trial, which commenced yesterday, </p><p>the parties representatives were invited to address the Court on this </p><p>issue. </p><p>[4] The material facts relevant to the preliminary issue I have outlined are </p><p>briefly the following. On 14 April 2012, Media 24 advised the first </p><p>respondent that the second respondent would take over the business of </p><p>providing catering at its premises, with effect from 1 May 2012. When </p><p>the applicants presented themselves after a handover to the second </p><p>respondent, they were told that there were no jobs for them at the site </p><p>and they say that they were evicted from Media 24s premises. </p><p>[5] It appears from the pre-trial minute that the majority of the applicants </p><p>were employed by the first respondent on fixed-term contracts, on other </p><p>sites, with effect from June 2012 and that they remain so employed. I </p></li><li><p>3 </p><p>accept that the terms of that employment may be different, but the fact </p><p>remains that in respect of all but three of the applicants continue to be </p><p>employed by the first respondent. </p><p>[6] On 5 May 2012, the applicants referred disputes to the CCMA. They </p><p>categorised the dispute as ones concerning an unfair dismissal and </p><p>indicated that they wish to be reinstated or compensated. On 22 May </p><p>2012, for reasons that are not apparent to me, the applicants referred a </p><p>dispute to the Bargaining Council, in which they claimed that they had </p><p>been unfairly dismissed by the second respondent. </p><p>[7] That dispute was categorised as a dispute concerning an unfair </p><p>retrenchment. The reason for that categorisation is not apparent. The </p><p>dispute remained unresolved after conciliation meeting and on 2 August </p><p>2012, a significant date for the purposes of the preliminary issues that </p><p>have been raised, a certificate of outcome to this effect was issued by </p><p>the Council. </p><p>[8] For reasons that are not apparent, the matter was thereafter referred to </p><p>the CCMA for arbitration. The arbitration was set down for 26 November </p><p>2012. The hearing was preceded by correspondence between the </p><p>parties respective attorneys. Specifically, the second respondents </p><p>attorney advised the applicants erstwhile attorney that given the nature </p><p>of the claim the CCMA lacked jurisdiction to arbitrate the dispute and that </p><p>the matter ought to have been referred to this Court. Despite that </p><p>advice, the applicants persisted with their claim in the CCMA. Not </p><p>surprisingly, the commissioner ruled that the CCMA lacked jurisdiction </p><p>[9] On 7 March 2013, the applicants erstwhile attorney filed the statement of </p><p>case to which I have referred. The statement of case makes no mention </p><p>of any dismissal, let alone an unfair dismissal. The high watermark for </p><p>the applicants is an averment to which I have made reference regarding </p><p>events when the applicants presented themselves at Media 24 after 30 </p></li><li><p>4 </p><p>April when the applicants in effect say that their tender of services was </p><p>refused. </p><p>[10] It is often forgotten that this Court is a creature of statute, that its </p><p>powers of jurisdiction are defined and conferred by the LRA and other </p><p>labour related legislation. The Court has authority and inherent powers </p><p>only in relation to matters under its jurisdiction. Section 157 of the Act </p><p>provides that the Court has for exclusive jurisdiction in respect of matters </p><p>that either in terms of the LRA or any other law are required to be </p><p>determined by this Court. </p><p>[11] Rule 6 of the Rules of this Court regulates matters that may be </p><p>referred for determination and establishes the procedure to be followed. </p><p>Rule 7 and 7(A) applies to those matters required to be brought by way </p><p>of application. In other words, this Court does not operate on the </p><p>principle applicable in the High Court where the foreseeability of any </p><p>material dispute of fact largely dictates the appropriate procedure. In this </p><p>Court, the Rules are far more prescriptive. The nature of the dispute </p><p>between the parties both serves to confer jurisdiction on the Court but </p><p>also dictates the manner in which a matter is to proceed, whether by way </p><p>of action or motion. This Court is afforded a large range of powers in </p><p>terms of section 158 of the Act, including the power to make declaratory </p><p>orders. But the Court may not exercise any of its powers if it has no </p><p>jurisdiction. </p><p>[12] The applicants sought a declaratory order, by way of a Rule 6 referral, </p><p>to the effect that s 197 applies to a particular transaction. As I have </p><p>indicated, it appears to me from the pleadings filed (which is the basis on </p><p>which jurisdiction is to be determined), that this Court has no jurisdiction </p><p>to entertain the applicants claim. There is no unfair dismissal claim that </p><p>has been referred to this court. The applicants ought at least to have </p><p>asserted the existence of a dismissal, and averred sufficient facts to </p><p>sustain the claim that the reason for the dismissal is a transfer in terms of </p></li><li><p>5 </p><p>section 197, or a reason related to the transfer. In other words, in the </p><p>statement of case, the applicants failed to plead facts to sustain a course </p><p>of action recognisable by this Court in terms of Rule 6. I do not </p><p>understand the applicants to dispute this proposition. </p><p>[13] This morning, after the proceedings were stood down yesterday in </p><p>order for the Court to prepare a ruling in regard to the preliminary issues </p><p>raised by the second respondent, the applicant filed an amendment in </p><p>terms of which the intention to amend the statement of case in a number </p><p>of respects was foreshadowed. That amendment seeks to introduce a </p><p>reference to the existence of a dismissal and the reason for the </p><p>dismissal, being one related to a transfer contemplated in section 197. </p><p>[14] The terms of the amendment further acknowledge that the applicants </p><p>have failed to comply with section 191(5)(b)(i) of the Act, in that the </p><p>statement of claim was filed outside of the 90-day period, which runs </p><p>from the date on which the certificate of outcome was issued. As I have </p><p>indicated, the statement of claim was filed some seven months after that </p><p>date, thereby being some four months out of time. In the notice of </p><p>amendment, the applicants seek to explain the reasons for the delay. </p><p>These reasons relate to advice received, it would appear, from the </p><p>Bargaining Council, and subsequent directions issued by the CCMA. </p><p> [15] The amendment also contemplates the substitution of the relief </p><p>sought by incorporating prayers which would have the effect of </p><p>condoning the late referral of the dispute for adjudication, and an order to </p><p>the effect that the applicants were dismissed for an automatically unfair </p><p>reason in terms of section 187(1) of the Act. More specifically, each of </p><p>the applicants claims 24 months remuneration calculated at the rate of </p><p>remuneration as at the date of their dismissal. </p><p>[16] Mr Watt-Pringle SC, on behalf of the second respondent, objected to </p><p>the proposed amendment and submitted that the applicants had failed to </p></li><li><p>6 </p><p>file a substantive application for amendment setting out all of the relevant </p><p>facts and circumstances in which the amendment was sought, and that in </p><p>the absence of such a substantive application and in view of the </p><p>prejudice that would be caused to the second respondent should the </p><p>amendment be granted, the amendment should be refused. </p><p>[17] This Court has a broad discretion as to whether or not to allow </p><p>amendment to pleadings. Obviously, this Court will generally lean </p><p>toward granting an application to amend pleadings, but the overriding </p><p>consideration is that where an amendment is allowed it must be done </p><p>without prejudice and without causing an injustice to any party. </p><p>[18] In my view, the inevitable delay that any postponement for that </p><p>purpose would occasion the prejudice that would be occasioned must </p><p>necessarily weigh heavily with me. Given that this matter has taken </p><p>almost some two years to reach this Court, to postpone this matter </p><p>further would not only substantially prejudice the second respondent, it </p><p>would also serve to frustrate the statutory purpose of expeditious dispute </p><p>resolution established by the Labour Relations Act. For that reason, an </p><p>amendment to the statement of claim at this late stage ought to be </p><p>refused. </p><p>[19] More fundamentally, there is no proper application for condonation </p><p>before this Court. Any application for the condonation of the late referral </p><p>of a dispute must necessarily be a substantive application in which the </p><p>applicant sets out precisely the period of delay and the reasons for that </p><p>delay in a manner that take this Court into the deponents confidence, </p><p>and which enables this Court to exercise the discretion that it must </p><p>necessarily exercise in determining whether or not condonation should </p><p>be granted. </p><p>[20] In the present circumstances, there is no such application. If a dispute </p><p>is referred late to this Court and there is no proper application for </p></li><li><p>7 </p><p>condonation, this Court has no jurisdiction to entertain the referral. So it </p><p>seems to me that even if I were inclined to grant the amendment, in the </p><p>absence of a proper and full substantive application for condonation, this </p><p>Court has no jurisdiction to entertain the claim that has been referred to </p><p>it. For this reason, in my view, the applicants claim stands to be </p><p>dismissed. </p><p>[21] In so far as costs are concerned, section 162 of the Act confers a </p><p>broad discretion on this Court to make orders for costs on the basis of </p><p>the requirements of the law and fairness. Although the institution of this </p><p>litigation was misguided to say the least, I suspect that the applicants </p><p>relied heavily on the advice of Mr Samuels, their previous attorney of </p><p>record. They were badly advised. The irony is that had the applicants </p><p>approached this Court April 2012 by way of an urgent application for the </p><p>declaratory order that they now seek, the Court would in all likelihood </p><p>have entertained that application. The irresistible conclusion to be drawn </p><p>is that Mr Samuels, having realised that the statement of claim was out </p><p>of time, contrived to avoid the applicable time limits by recasting the </p><p>terms of the dispute. In these circumstances, it would be inappropriate to </p><p>hold the applicants personally liable for the respondents costs. </p><p>[22] In so far as the further postponement of these proceedings is sought, </p><p>in my view, any further delay in this matter should not be countenanced. I </p><p>come to this conclusion, as I have indicated, particularly mindful of the </p><p>fact that unfair dismissal disputes in particular are required to be </p><p>diligently pursued and expeditiously resolved. </p><p>[23] The Labour Relations Act imposes strict time limits on the referral of </p><p>disputes to the CCMA or a Bargaining Council, and for further referral </p><p>either to arbitration or to this Court. This Court too has been reproached </p><p>by the Supreme Court of Appeal and the Constitutional Court for what </p><p>has been termed systemic delays in the resolution of labour disputes. </p><p>But while no doubt this Court as an institution is on occasion guilty of </p></li><li><p>8 </p><p>perpetrating systemic delay, it is not in all cases that this is so. There </p><p>are cases, the present case being an example, where a matter has been </p><p>pursued other than with the degree of diligence required by the Labour </p><p>Relations Act thus frustrating the purpose of expeditious dispute </p><p>resolution. </p><p>For those reasons, I make the following order: </p><p>1. The applicants referral is dismissed. </p><p>2. There is no order as to costs. </p><p>ANDR VAN NIEKERK </p><p> JUDGE OF THE LABOUR COURT </p></li></ul>


View more >